Board Issues Final Rules

For the first time in 20 years, the regulations governing how the NTSB conducts its investigations have been changed. The new rules are the culmination of a process started by the Board over five years ago. The new rules make official much of the guidance and informal processes that have developed over that time. The following is a summary of the more important changes.

831.4 Recommendations and Cost-Benefit Analysis: The NTSB rejected a proposal to include a cost-benefit analysis when making its recommendations. The Board felt that they did not have the staff or the necessary expertise to conduct this type of analysis. In addition, the NTSB noted that when the appropriate agency, such as the FAA, conducts a rulemaking to implement the Board’s recommendations, additional facts on the costs and benefits often comes to light, calling into question the merits of the NTSB performing its own analysis outside of the rulemaking process.

831.5 Priority of NTSB Investigations: The original draft regulation was based on the provisions of 49 U.S.C. § 1131(a)(2)(A), which gives the NTSB investigation priority over investigations conducted by other public entities. It required other agencies to consult with the NTSB Investigator in Charge prior to gathering evidence or questioning witnesses, to give the NTSB any evidence they collect, and inform the NTSB on any corrective or mitigating measures they are taking while the investigation is ongoing. The Department of Transportation objected to these changes, claiming that the NTSB cannot require advance approval of actions by other agencies and the draft regulation would potentially interfere with its work. While the NTSB softened some of the language in crafting the final rule, it did not back down on the core principal that the NTSB has priority over other agencies, and affirmed that the NTSB “has first right to access wreckage, information, and resources, and to interview witnesses . . . .” The regulation also affirms in several places that no other agency may participate in the probable cause finding.

831.6 Confidential Business Information: The proposed revision to the rule drew comments from Boeing and Textron that in recent years, the NTSB had not been protecting confidential business information to the same extent that it would under the Freedom of Information Act, and that if this trend continued, it could “inhibit the free flow of information” in an investigation. The final rule confirms the NTSB’s authority to release a trade secret without consent when it is necessary to support a key finding or safety recommendation. It does, however, provides a procedure for notifying the owner prior to release and for implementation of a process to negotiate with the owner of the trade secret and limit the disclosure to the minimum necessary to accomplish the NTSB’s goals. In addition, the NTSB reaffirmed that its decisions on what information should be released in the public docket will follow the guidance in the Freedom of Information Act for withholding confidential information.

831.7 Witness representation: The final rule makes clear that a witness has the right to be accompanied by a single representative, who may be an attorney. The rule also makes clear that a representative may be thrown out of an interview if he or she disrupts the interview process. Some commenters argued that a pilot should have the right to more than one representative, specifically one from the employer and one from the union, because each has a different interest. The NTSB rejected this concern, noting that the sole interest of a witness’s representative should be supporting and advocating for the witness, and not any third-party.

As a final note, a number of commentators asked that the NTSB include a formal procedure governing the removal of a party from an investigation, including permitting review of the decision by a court. The NTSB rejected this proposal, saying that removal from an investigation is not a deprivation of a significant property interest that requires any type of formal hearing. The NTSB affirmed that it would only use the process as a last resort, but declined to further define the circumstances under which removal would be appropriate.

For those of you who want to take a closer look at the regulations and the explanatory material, it can be found at this LINK. If you would like additional information, do not hesitate to contact us.

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About: Mark E. McKinnon

Mr. Mark McKinnon has worked for over 27 years in all areas of aviation and transportation law, including litigation, appellate, regulatory and other administrative matters. He has written and spoken extensively on unmanned aircraft systems (UAS) and aviation matters. In addition, he is co-editor of the Plane-ly Spoken blog, which is dedicated to providing up-to-date news, analysis, and opinion on issues that affect the aviation industry. View all posts by Mark E. McKinnon →

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